Focus On The Pick After Roberts

by Steve

Our friends in the media, and especially my favorite punching bags at ABC News’ The Note, are doing their best to drum up some drama in today’s vote by the Senate Judiciary Committee on Chief Justice John Roberts’ nomination to the Supreme Court. In their efforts to make a big story out of the Democrats’ lack of cohesion on the vote, some media outlets miss several points:

First, given the way the White House withheld documents and made sure that Roberts said little, and given the number of vulnerable Democratic senators next year, as long as the White House was able to portray Roberts as a mainstream conservative who had a right to not answer questions, there was no way that any GOP senator was going to vote against him and make it close on the floor vote. That ensured that Harry Reid wasn’t going to win this one, and there was then no reason for any Senate Dem to stick his or her neck out to oppose Roberts if doing so didn’t matter on a vote that isn’t the court’s swing vote.

Second, as much as we may not like it, Roberts will get a pass, because the real battle to be waged will be on the O’Connor seat, and Democrats know it. Why? Because depending on whom Bush nominates, there is no guarantee that he will have a solid block of GOP support for that nominee. Arlen Specter has already put the White House on notice that a far right conservative will not get his vote in the committee, and given the range of names that the White House is floating already (some most assuredly to make his eventual choice to look moderate in comparison), it is very possible that Bush will nominate someone that several GOP senators up for election themselves next year cannot support, namely a far right conservative outside the judicial mainstream, or a recently-confirmed appeals court judge who would otherwise not be qualified, like Priscilla Owen or Janice Rogers Brown. No matter which way Bush goes with the O’Connor pick, he will piss off someone on his side of the aisle, which is why the Democrats need to be ready to exploit that situation.

There should be no mystery about Bush naming a conservative; he will. And there should be no mystery about Bush waiting until after he gets Roberts before he tips his hand on the O’Connor pick. He will. But it is on that pick where the battle will be waged, because our right to privacy and the New Deal hang in the balance with that pick. Democrats were never in a position to stop Roberts after his performance at the hearing, but then how tough is it to swat away gnats like Joe Biden and Pat Leahy anyway? A real problem for the Senate Democrats is the absence of any noticeable intellectual candlepower or backbone in many Democrats on the Judiciary Committee, or even in the caucus for that matter. In that regard, only the White House can bail Reid out by naming a problematic candidate for the next seat, who isn’t the smoothie that Roberts was. But the stakes and risks are higher for Bush with this pick, and I’m not so sure the GOP bench is deep enough for a pick that won’t piss off someone and endanger the total support of his own caucus.

Update: The committee went 13-5 for Roberts in sending his name to the floor with a recommendation for approval. Pat Leahy, Herb Kohl, and interestingly Russ Feingold all voted with the Republicans, and all were trusting of Roberts.